Exhibit 10.9
ASSIGNMENT AND ASSUMPTION
AGREEMENT
THIS ASSIGNMENT AND ASSUMPTION
AGREEMENT (this “ Agreement ”) dated as of
August 22, 2008 is entered into by and between Goldman Sachs
Mortgage Company (“ GS ”) and Citicorp North
America, Inc. (“ Citi ”; together with GS,
collectively, “ Assignor ”) and KBS Debt
Holdings, LLC (“ Assignee ”).
W I T N E S
S E T H:
WHEREAS, reference is made to the
Amended and Restated Senior Mezzanine Loan Agreement, dated as of
April 1, 2008 between Assignor, as lender, and the entities
listed on Schedule 1 hereto, as borrower (as amended,
restated, supplemented or otherwise modified from time to time, the
“ Loan Agreement ”), and to the loan made
pursuant thereto (the “ Loan ”); and
WHEREAS, pursuant to the terms of
this Agreement, Assignor desires to sell, and Assignee desires to
purchase, the Loan;
NOW THEREFORE, for good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto covenant and agree as
follows:
1.
Assignment . Assignor hereby sells, assigns and transfers to
Assignee all of Assignor’s right, title and interest in and
to the Loan, the Loan Documents, that certain Intercreditor
Agreement dated as of April 1, 2008 by and among GS, Citi and
SLG, each in their capacity as the Mortgage Lender, Lender and
Junior Mezzanine Lender (the “ Intercreditor Agreement
”) and each of the Encumbered Property Loan Intercreditor
Agreements (defined below), in exchange for payment to Assignor in
immediately available funds of an aggregate purchase price
specified in a settlement statement executed by both parties, plus
all accrued and unpaid interest on the Loan to (but excluding) the
Settlement Date.
“ Settlement Date
” means the date hereof; provided , however ,
that if Assignor receives such aggregate purchase price after 3:00
p.m., New York time, on the date hereof, the Settlement Date shall
be the next succeeding Business Day.
2.
Assumption . Assignee hereby assumes the obligations, and
agrees to observe and perform all the covenants, applicable to the
holder of the Loan under the Loan Documents, the Intercreditor
Agreement and the Encumbered Property Loan Intercreditor Agreements
accruing from and after the Settlement Date. Assignee hereby
remakes the representations and warranties contained in the
Encumbered Property Loan Intercreditor Agreements for the benefit
of the respective Property Lender (as defined therein).
3.
Non-Reliance on Assignor . Except as explicitly set forth
herein, Assignor makes no representation or warranty in connection
with, and shall have no responsibility with respect to, the
solvency, financial condition, or financial or other statements of
the Borrower, or the validity or enforceability of the obligations
of the Borrower in respect of the Loan Agreement or any other Loan
Document. Assignee acknowledges that it has, independently and
without
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reliance on Assignor (except as set forth in the
representations in Section 4 below), made its own
credit analysis and decision to enter into this Assignment and
Assumption Agreement and will continue to be responsible for making
its own independent appraisal of the business, affairs and
financial condition of the Borrower and the Property.
4.
Representations .
(a) The
assignment provided for herein shall be without representation or
warranty by, and without recourse to, Assignor, except that
Assignor represents and warrants as follows:
(i) (a)
GS is a New York limited partnership, duly organized, validly
existing and in good standing under the laws of the State of New
York; (b) Citi is a New York corporation, duly organized,
validly existing and in good standing under the laws of the State
of New York; and (c) SLG is a Maryland corporation, duly
organized, validly existing and in good standing under the laws of
the State of Maryland.
(ii) Assignor
has the full power, authority and legal right to sell, assign and
transfer the Loan and to execute, deliver and perform this
Agreement.
(iii) Assignor
has duly authorized, executed and delivered this Agreement and,
assuming the due authorization, execution and delivery by the
Assignee, this Agreement constitutes the legal, valid and binding
agreement of Assignor, enforceable in accordance with its terms,
except as such enforcement may be limited by bankruptcy,
insolvency, reorganization, liquidation, receivership, moratorium
and other laws relating to or affecting the enforcement of
creditors’ rights generally and by general principles of
equity (regardless of whether such enforcement is considered in a
proceeding in equity or at law).
(iv) Assignor
is the legal and beneficial owner of the Loan and is transferring
the Loan free and clear of any and all liens, pledges, charges or
security interests of any nature encumbering the Loan.
(v) As
of the date hereof, the outstanding principal balance of the Loan
is $500,000,000.00, and the proceeds of the Loan have been fully
disbursed and, there are no holdbacks and there is no requirement
for future advances thereunder. Interest on the Loan has been paid
through and including the interest payment that was due on
July 9, 2008.
(vi) Each
of the additional representations and warranties set forth in
Schedule 2 attached hereto and made a part hereof are true,
and correct as of the date hereof.
(b) Assignee
hereby represents, warrants and covenants as follows:
(i) Assignee
is duly organized, validly existing and in good standing in the
jurisdiction of its formation.
(ii) Assignee
has the full power, authority and legal right to purchase the Loan,
and to execute, deliver and perform this Agreement.
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Assignment & Assumption
(iii) Assignee
has duly authorized, executed and delivered this Agreement and,
assuming the due authorization, execution and delivery by the
Assignor, this Agreement constitutes the legal, valid and binding
agreement of the Assignee, enforceable in accordance with its
terms, except as such enforcement may be limited by bankruptcy,
insolvency, reorganization, liquidation, receivership, moratorium
and other laws relating to or affecting the enforcement of
creditors’ rights generally and by general principles of
equity (regardless of whether such enforcement is considered in a
proceeding in equity or at law).
(c) Each
party hereto represents and warrants to the other that it has dealt
with no broker or similar person in connection with entering into
this Agreement (other than the other party to this
Agreement).
5.
Governing Law . This Agreement shall be governed by and
construed in accordance with the internal laws of the State of New
York, without regard to conflict of law principles.
6.
Counterparts . This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same
instrument.
7.
Successors and Assigns . The provisions of this Agreement
shall be binding upon the parties and their respective successors
and/or assigns.
8.
Entire Agreement . This Agreement constitutes the entire
agreement, and supercedes all prior agreements, if any, of the
parties hereto with respect to the subject matter
hereof.
9.
Defined Terms . Capitalized terms used and not defined
herein will have the respective meanings set forth in the Loan
Agreement.
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Assignment & Assumption
IN WITNESS WHEREOF, the parties have
caused this Agreement to be executed and delivered by their duly
authorized officers as of the date first above written.
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ASSIGNOR:
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GOLDMAN SACHS MORTGAGE COMPANY, a New
York limited partnership
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By:
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Goldman Sachs Real Estate Funding
Corp.,
its general partner
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By:
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/s/
Authorized Signatory
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Name:
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Title:
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CITICORP NORTH AMERICA, INC., a New
York
corporation
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By:
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/s/
Authorized Signatory
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Name:
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Title:
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[Signatures continue on following
page]
Assignment & Assumption
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ASSIGNEE:
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KBS DEBT
HOLDINGS, LLC,
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a Delaware
limited liability company
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By:
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KBS LIMITED PARTNERSHIP,
a Delaware limited partnership,
its manager
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By:
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KBS REAL ESTATE INVESTMENT TRUST, INC.,
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a Maryland corporation,
its sole general partner
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By:
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/s/ Charles J.
Schreiber, Jr.
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Charles J. Schreiber,
Jr.
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Chief Executive
Officer
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Assignment & Assumption
Schedule 1
Borrowers
1. GKK Stars Acquisition
LLC
2. American Financial
Realty Trust
3. First States Group,
L.P.
4. American Financial
TRS, Inc.
5. First States Group,
LLC
6. First States
Investors 104 Holdings, L.P.
7. First States
Investors 240 Holdings, LLC
8. First States
Investors 241 Holdings, LLC
9. First States
Investors 3300 Holdings, LLC
10. First States Investors 4000A,
L.P.
11. First States Investors 4100,
LLC
12. First States Investors 4600
Holdings, LLC
13. First States Investors 5000,
LLC
14. First States Investors 6000,
LLC
15. First States Investors 801,
L.P.
16. First States Investors 923
Holdings, L.P.
17. First States Investors 927
Holdings, LLC
18. First States Investors Asset
Group A, L.P.
19. First States Investors GS Pool A
Holdings, LLC
20. First States Investors GS Pool B
Holdings, LLC
21. First States Investors,
L.P.
22. First States Partners III,
L.P.
23. First States Partners,
L.P.
24. First States Properties,
L.P.
25. First States Wilmington JV,
L.P.
Schedule 1
Schedule 2
Additional Representations and
Warranties
1.
Schedule 3 attached hereto and made a part hereof is a true,
correct and complete list of the Loan Documents (including the
Intercreditor Agreement) as of the date hereof, true, correct
copies of which (including all amendments, assignments and
modifications thereto) have been provided by Assignor to
Assignee.
2. No
consent or approval from any party (including authorization, or
order of, or registration or filing with, or notice to, any court
or governmental agency or body having jurisdiction or regulatory
authority over Assignor) is required for Assignor’s execution
and delivery of this Agreement or the consummation of the
transactions contemplated by th
